June 30, 2015

A. Job Advertisements and Applications
1. What information do employers have to provide about the ADA on job advertisements and job applications?

No specific information about the ADA is required on job advertisements or job applications. However, the EEOC advises employers to include information about the essential functions of the job in job announcements, advertisements, and other recruitment notices because specific information about essential functions will attract applicants, including individuals with disabilities, who have appropriate qualifications.

The EEOC also advises employers to consider including a statement in job advertisements and notices that they do not discriminate on the basis of disability or other legally prohibited bases. The EEOC provides the following example: "We are an Equal Opportunity Employer. We do not discriminate on the basis of race, religion, color, sex, age, national origin or disability."

For additional information, see the EEOC’s Title I Technical Assistance Manual at http://askjan.org/links/ADAtam1.html.

2. Does the ADA require affirmative action in the hiring of people with disabilities?

No. The ADA is a nondiscrimination law. It does not require employers to undertake special activities to recruit people with disabilities. However, it is consistent with the purpose of the ADA for employers to expand their "outreach" to sources of qualified candidates with disabilities. Recruitment activities that have the effect of screening out potential applicants with disabilities may violate the ADA.

For example: If an employer conducts recruitment activity at a college campus, job fair, or other location that is physically inaccessible, or does not make its recruitment activity accessible at such locations to people with visual, hearing or other disabilities, it may be liable if a charge of discrimination is filed. For more information, see the EEOC’s Title I Technical Assistance Manual at http://askjan.org/links/ADAtam1.html.

3. Does the ADA allow affirmative action in the hiring of people with disabilities?
Employers may invite applicants to voluntarily self-identify for purposes of the employer's affirmative action program if the employer is undertaking affirmative action because of a federal, state, or local law that requires affirmative action for individuals with disabilities, or the employer is voluntarily using the information to benefit individuals with disabilities.

According to the EEOC, if an employer invites applicants to voluntarily self-identify in connection with providing affirmative action, the employer must state clearly that the information requested is used solely for affirmative action purposes, that it is being requested on a voluntary basis, that it will be kept confidential in accordance with the ADA, that refusal to provide it will not subject the applicant to any adverse treatment,
and that it will be used only in accordance with the ADA.

For additional information, see Pre-Employment Disability-Related Inquiries and Medical Exams at http://www.eeoc.gov/policy/docs/preemp.html.

4. Where can employers find qualified applicants with disabilities?
According to the U.S. Department of Labor, Office of Disability Employment Policy (ODEP), qualified applicants with disabilities can be located through various resources, including Vocational Rehabilitation (VR). In addition, ODEP co-sponsors the Workforce

Recruitment Program (WRP) to connect public and private sector employers nationwide with postsecondary students and recent graduates with disabilities and many colleges and universities have coordinators of services for students with disabilities who can be helpful in recruitment. Employers may also be able to locate qualified applicants with disabilities by contacting local independent living centers or organizations representing people who have specific disabilities.

For a list of VR offices by state, visit http://askjan.org/cgi-win/TypeQuery.exe?902.

For information about WRP, visit http://www.dol.gov/odep/pubs/brochures/wrp1.html. For additional information regarding recruiting employees with disabilities, see Recruitment! Recruitment! Recruitment! at http://www.dol.gov/odep/archives/ek01/recruit.htm.

5. What accommodations do employers have to provide during the application process?
Employers have an obligation to make reasonable accommodations to enable applicants with disabilities to apply for jobs. For example, information about jobs should be available in a location that is accessible to people with mobility impairments. If a job advertisement provides only a telephone number to call for information, a TDD  (telecommunication device for the deaf) number should be included, unless a telephone relay service has been established. Printed job information in an employment office or on employee bulletin boards should be made available, as needed, to persons with visual or other reading impairments. Preparing information in large print will help make it  available to some people with visual impairments. Information can be recorded on a cassette or read to applicants with more severe vision impairments and those who have other disabilities that limit reading ability.

For more information about making the application process accessible, see the EEOC’s Title I Technical Assistance Manual at http://askjan.org/links/ADAtam1.html.

6. Do employers have to make on-line application processes accessible? Employers must either make their on-line application processes accessible or provide an alternative means for people with disabilities to apply for jobs, unless they can show that doing so would cause an undue hardship.
For information regarding making on-line applications accessible, visit http://askjan.org/topics/onlineapps.htm.

7. What medical questions can employers ask on job applications?
Employers cannot ask disability-related questions before an offer of employment is made. In general, this means that employers cannot ask questions on job applications that are likely to elicit information about a disability. For example, employers cannot ask  whether an applicant has a physical or mental impairment, has received workers compensation, or was ever addicted to illegal drugs.

For more examples, visit Pre-Offer, Disability-Related Questions: Dos and Don’ts at http://askjan.org/media/preofferfact.doc.

For additional information about pre-employment medical questions, see Pre- Employment Disability-Related Inquiries and Medical Exams at
http://www.eeoc.gov/policy/docs/preemp.html.

8. How can employers accommodate applicants with disabilities during preemployment
testing?
The method of accommodation depends on the individual applicant’s limitations and the type of test involved, so each situation must be approached on a case by case basis. As a starting point, JAN put together a publication that provides a broad discussion of  potential accommodations for testing.

The publication is called Accommodations for Testing and can be viewed at http://askjan.org/media/testingaccomm.html.

9. Do employers have to have job descriptions?

According to the EEOC, the ADA does not require employers to develop or maintain job descriptions. A written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence in determining essential functions along with other relevant factors. However, the job description will not be given greater weight than other relevant evidence.

The ADA does not limit an employer's ability to establish or change the content, nature, or functions of a job. It is the employer's province to establish what a job is and what functions are required to perform it. The ADA simply requires that an individual with a disability's qualifications for a job be evaluated in relation to the job’s essential functions.

For more information about job descriptions, visit Job Descriptions at http://askjan.org/media/jobdescriptions.html.

B. Job Interviews

1. What medical questions can employers ask during a job interview?

Under the ADA, employers may not ask disability-related questions or conduct medical examinations until after they make a conditional job offer to an applicant. This helps ensure that an applicant's possible hidden disability (including a prior history of a disability) is not considered before employers evaluate an applicant's non-medical qualifications. Employers may not ask disability-related questions or require a medical examination pre-offer even if they intend to look at the answers or results only at the
post-offer stage.

Although employers may not ask disability-related questions or require medical examinations at the pre-offer stage, they may do a wide variety of things to evaluate whether an applicant is qualified for the job, including asking about an applicant's ability to perform specific job functions, asking about an applicant's non-medical qualifications and skills, and asking applicants to describe or demonstrate how they would perform job
tasks. For more examples, visit Pre-Offer, Disability-Related Questions: Dos and Don’ts at http://askjan.org/media/preofferfact.doc.

For additional information, visit EEOC’s Pre-employment Disability-Related Inquiries and Medical Exams at http://www.eeoc.gov/policy/docs/preemp.html.

2. Where can employers get information about disability etiquette?

There are a variety of resources for information about disability etiquette. JAN provides a list of some of the available resources on its Website at
http://askjan.org/topics/disetiq.htm.

3. What accommodations must be provided for job interviews?

Employers have an obligation to make reasonable accommodations to enable applicants with disabilities to participate in the interview process. Accommodations for interviews may include: an accessible interview location for people with mobility  impairments, a sign language interpreter for a person who is deaf, a reader for a person who is blind, and modified testing for a person with a learning disability.

For more information about making the job interviews accessible, see the EEOC’s Title I Technical Assistance Manual at http://askjan.org/links/ADAtam1.html.

C. Post Job Offer
1. What constitutes a valid job offer?

A job offer is valid if the employer has evaluated all relevant non-medical information that it reasonably could have obtained and analyzed prior to giving the offer. There may be times when an employer cannot reasonably obtain and evaluate all non-medical information at the pre-offer stage. If an employer can show that is the case, the offer would still be considered a real offer.

Employers do not have to limit offers to current vacancies; they can give offers to fill current vacancies or reasonably anticipated openings. Employers may also give offers that exceed the number of vacancies or reasonably anticipated openings, but must comply with the ADA when taking people out of the pool to fill actual vacancies. The employer must notify an individual (orally or in writing) if his/her placement into an actual vacancy is in any way adversely affected by the results of a post-offer medical examination or disability-related question.

If an individual alleges that disability has affected his/her placement into an actual vacancy, the EEOC will carefully scrutinize whether disability was a reason for any adverse action. If disability was a reason, the EEOC will determine whether the action  was job-related and consistent with business necessity.

For additional information, visit EEOC’s Pre-employment Disability-Related Inquiries and Medical Exams at http://www.eeoc.gov/policy/docs/preemp.html.

2. What medical questions can employers ask once a job offer has been made?

According to the EEOC, once a conditional job offer is made and before an employee starts work, employers may ask any disability-related questions they choose and they may require medical examinations as long as this is done for all entering employees in a
particular job category.

For additional information, visit EEOC’s Pre-employment Disability-Related Inquiries and Medical Exams at http://www.eeoc.gov/policy/docs/preemp.html.

3. Can employers rescind a job offer without violating the ADA?

In some cases employers may be able to rescind a job offer without violating the ADA. If an employer rejects an applicant after a post offer disability-related question or medical examination and the applicant files a complaint with the EEOC alleging discrimination, EEOC investigators will closely scrutinize whether the rejection was based on the results of that question or examination. If the question or examination screens out an
individual because of a disability, the employer must demonstrate that the reason for the  rejection is job-related and consistent with business necessity. In addition, if the individual is screened out for safety reasons, the employer must  demonstrate that the individual poses a "direct threat." This means that the individual poses a significant risk of substantial harm to him/herself or others, and that the risk cannot be reduced below the direct threat level through reasonable accommodation.